March 20, 2005

Terri Schiavo

by hilzoy

As I type these words, the US Congress is preparing to meet in extraordinary session to decide whether to pass a bill granting Terri Schiavo's parents the right to take her case to federal court. This is an amazing spectacle on any number of counts. But one of the most striking to me, as a bioethicist, is that so many people are talking as though Terri Schiavo is the victim of some alarming new indignity. Thus, ABC News (video clip here; 'Questioning Intentions') showed Rep. Dave Weldon saying, on the floor of the Congress, "To order the withdrawal of food and water from somebody -- it's never been done before to my knowledge." There are only two ways to take this claim: either Rep. Weldon is lying or he has not bothered to inform himself even minimally about what he's talking about. In fact, the only thing about Terri Schiavo's case that's at all unusual is the amount of attention it has received.

The basic facts of the case are well known (there's a very good account here.) In 1990, Terri Schiavo suffered cardiac arrest, probably as a result of bulimia. (If any of you have been wondering why a woman in her twenties had cardiac arrest, that seems to be the answer. The underreporting of this aspect of the case is a real missed opportunity to educate people about the consequences of serious eating disorders.) As a result of the cardiac arrest, her brain was deprived of oxygen, which caused severe brain damage.

Eight years later, after various attempts at therapy and a successful malpractice suit (based on the doctors' failure to diagnose Terri's eating disorder), Michael Schiavo petitioned the court to determine whether her feeding tube should be removed. Many press reports talk as though he just decided that it should be removed; in fact, he left that decision to the court. He and others testified that Terri Schiavo had said that she would not want to be kept alive in a condition like the one she was in; her family of origin testified that she had said that she would. The judge found (pdf) that there was 'clear and convincing evidence' that Terri Schiavo would not have wanted to receive life-prolonging care in her current condition, and ordered that the feeding tube could be removed. (If you are wondering how the judge could have found 'clear and convincing evidence' given conflicting testimony, I urge you to read the pdf, which explains why the judge did not find her parents' testimony credible. In one case, for instance, they testified that she had made a remark supporting their position when she was an adult, but it turned out that she had said it when she was 11 or 12.) This was in 1998; in 2001, after this decision had been appealed as far as it could go and upheld, her feeding tube was removed for the first time.

However, the tube was reinserted after her parents filed another appeal based on the claim that they had new evidence and that there were new treatments that might help her regain consciousness. These appeals were heard and denied; again, the case was appealed as far as it could go, and upheld. Terri Schiavo's parents then challenged the constitutionality of the relevant laws, but this challenge was dismissed by a federal court. At this point, in October 2003, her feeding tube was removed for the second time. The Florida legislature then passed a law allowing Gov. Bush to issue a stay and have the feeding tube reinserted. After yet another series of appeals, this law was found to be unconstitutional by the Florida Supreme Court; this decision was appealed to the US Supreme Court, which denied review. The parents then filed various new motions all of which were denied; and on Friday Terri Schiavo's feeding tube was removed.

As I read this history, several things stand out. The first is that it is hard for me to see how anyone could think that Terri Schiavo's feeding tube was being removed without due consideration, since more or less every relevant aspect of it has been litigated and appealed as far as possible. Nor, as far as I can tell, is there any question about the competence of the lawyers involved: everyone seems to agree that both sides have been well represented.

The second is that there seems to be very little question about whether Terri Schiavo might ultimately recover. (Rivka at Respectful of Otters, who is a doctor, has a good post about the medical opinions offered by Terri Schiavo's parents.) As one of the court decisions in this case said (pdf; p. 7):

"Although the physicians are not in complete agreement concerning the extent of Mrs. Schiavo's brain damage, they all agree that the brain scans show extensive permanent damage to her brain. The only debate between the doctors is whether she has a small amount of isolated living tissue in her cerebral cortex or whether she has no living tissue in her cerebral cortex."

The cerebral cortex is responsible for cognition and the integration of sensation. Terri Schiavo's cerebral cortex is not only dead; it has liquified. If her cerebral cortex were still there but for some reason not working, then there might be hope that she could recover. But in her case, it's gone. In order for her to recover, it would have to be literally recreated. Here, via Alas, a blog, is a scan of Terri Schiavo's brain and a healthy brain:
My understanding is that the dark bits are spinal fluid; and thus that the fact that the scan of Terri Schiavo's brain shows huge dark areas, both in the center and elsewhere, indicates that an awful lot of her brain has been replaced by spinal fluid. I am not a doctor, of course. But Rivka, who is, writes: "The amount of brain tissue missing is truly shocking." And PZ Meyers adds: "I am not a medical doctor, but I do have that Ph.D. in neuroscience (I am eminently qualified to analyze the brains of fish and insects), and that is one ghastly mess. That's not much of a brain, it's a balloon bobbing about in there." (In using these quotes, I mean no disrespect to Ms. Schiavo, for whom I have nothing but sympathy.)

***

So much for the basic facts. Why is this happening, and what are the ethical issues involved? To understand this, you need to understand three basic facts about current law.

First, in this country competent adults have the right to decline medical treatment. This is a very good thing, since many of the things doctors do to their patients would constitute assault if done against those patients' wills. It is this right that allows cancer patients to decide not to undergo that last excruciating round of chemo that would give them only a slight chance of survival, Jehovah's Witnesses to refuse the blood transfusions that they believe it would be sinful to receive, and people with painful terminal illnesses to refuse treatment for other diseases, like pneumonia, that offer them the chance of an easier death. This right is extremely important: without it, we could be subjected to serious assaults on our body without our consent, so long as some physician said that those assaults were medically necessary.

Second, courts have held that for these purposes, nutrition and hydration count as life-prolonging treatments, and thus that competent adults have the right to refuse them as well. This is also important: having a feeding tube inserted is a serious violation of a person's bodily integrity, and people have the right to refuse it. It's also a point that is often neglected in the coverage of Terri Schiavo's case. What is happening is not that a court has ordered that she be killed. If courts could order that, there would be no reason to wait for her to die; the court could simply order a lethal injection of some sort. The court has found that she would not have wanted this sort of medical treatment, and thus that it cannot be forced on her. This is completely different.

In the comments on a previous thread, in the course of a discussion about the difference between withholding treatment and killing, felixrayman wrote: "If she isn't fed, she'll be dead in a week or two. There is no substantial difference here." There is no substantial difference in the outcome of the two, in this case. Likewise, when a terminal cancer patient declines chemo, and a court upholds her right to do so, the outcome is the same as if someone shot her, since in both cases she dies. But there is a huge and important difference between what is done to produce that outcome. In the first case, the reason the patient dies is that she has decided to refuse treatment. If we deny her that right in cases in which she will die without treatment, we are denying her the right to determine what happens to her body. By contrast, if I shoot her, I have not just accepted her autonomy; I have taken matters into my own hands and killed her. As I said in another context, consent makes all the difference (and that post contains several other examples of cases in which "there is no substantial difference" in outcomes, but a very substantial difference morally.)

Of course, the obvious reply is that in the case at hand, Terri Schiavo did not ask that her feeding tube be removed. This brings me to my third point: In cases in which a patient is not competent to consent to or refuse treatment, there is a well-established way to proceed. First, you ask whether the patient has prepared a living will or an advanced directive, or has given a durable power of attorney to some other person, authorizing him or her to make decisions if the patient becomes incompetent. In this case, as often happens, there were no such documents. Second, you look around for other evidence about what the person would have wanted. That was done in this case, and the courts found "clear and convincing" evidence that Terri Schiavo would not have wanted to be kept alive in her current state. If there is no such evidence, a guardian gets to decide, based on the patient's best interests.

As I noted earlier, in this case Michael Schiavo is his wife's guardian, and might have decided what she would have wanted. However, he chose instead to ask the court to consider the evidence about what she would have wanted, and to make its own evaluation. It found that she would not have wanted to be kept alive. That is: this is not a case in which anyone is proceeding in the absence of evidence about what she would have wanted, nor is it a case in which Michael Schiavo is acting only on his sense of what his wife would have wanted, without allowing a hearing for anyone else's view.

Under current law, when a person is incompetent to consent to or refuse treatment, evidence of that person's views and wishes is used to determine whether or not s/he would have consented to treatment. In Terri Schiavo's case, the courts have determined that she would not have consented. In accordance with what they have found to be her wishes, they are seeking to discontinue the treatment to which she would not have consented. That is: legally, this is a matter of letting her views about her life and her body govern the treatment she is subjected to, not a matter of anyone else's deciding whether she will live or die. What's at issue in this case is not "life"; it's patient autonomy.

It seems to me that in order to say that Terri Schiavo's feeding tube should not be removed, you have either to challenge the basic facts of the case as found by the courts, or to say that one of the three points I have just made is wrong. I don't imagine that many people will say that competent adults should not have the right to decline medical treatment. Some people may be tempted by the idea of denying that feeding and hydration are among the things competent adults should be able to decline, but if you think about the huge intrusion on people's bodily integrity and autonomy that giving the government the right to force you to have a feeding tube implanted against your will would represent, I think this view will seem less attractive.

The most plausible place to disagree, I think, is on the third point: taking evidence of an incompetent person's views and wishes to determine whether that person would have consented to treatment. Here I think it's important to bear several things in mind. First, requiring 100% certainty about someone's wishes would make it impossible to decide what to do for any incompetent patient. Suppose, for instance, that that patient left a living will: living wills are almost never detailed enough to cover all possible contingencies, and they often need to be interpreted to yield a conclusion about actual treatment decisions. (A case I sometimes use in class involves a nursing home patient who has made it clear that she does not want to be resuscitated artificially, who has a really bad reaction to a new medication and goes into shock, and who can almost certainly be immediately and completely resuscitated with an epi stick. Depending on the details, it can be pretty clear that this was not the case the patient had in mind when she asked not to be resuscitated; that she was thinking of herself having gone into a serious decline and being kept alive with tubes and then suffering cardiac arrest, not of a quick and reversible allergic reaction.)

Suppose the living will turns out to cover exactly the case at hand, so that no interpretation is needed. One might still wonder: might the patient have changed her mind after writing the living will, but never gotten around to updating it? If she didn't mention any such change of heart to anyone, that's hardly proof that none occurred. But even if, by some huge coincidence, she was discussing an exactly similar case at the very moment when she collapsed, that's not proof either. It often happens that people's views about what they would want in a given case are wrong. People think they'll be happy if they get promoted, and then find themselves just as miserable as before; they think they could never learn to live without the use of their legs, but then go on to live perfectly happy wheelchair-bound lives; they think that some medical problem would be easy to deal with, but when it actually occurs find that it completely undoes them. So knowledge of Terri Schiavo's views on this exact case at the very moment when she went into cardiac arrest would not guarantee any knowledge of what she'd want if, per impossibile, she were able to have desires now. But surely it's one's views at the time, not one's views in the past, that should dictate one's treatment.

This means that if we require 100% certainty about people's wishes in order to refrain from treating them, we will never refrain from treating any incompetent patient. (Maybe we won't refrain from treating competent patients either: after all, they could be lying.) And this in turn means that a lot of people's wishes about what medical treatments they would like to receive, and what they do and do not want done to their body, will be violated. There is, it seems to me, no getting around this point.

This might not seem significant if one thought that there was no harm that could even be compared to the harm of losing your life, where 'losing your life' does not mean 'being killed', but simply dying. I do not think this is true: there are things I would rather die than undergo, and one of them is having my fate made the object of a political circus, as Terri Schiavo's is. More importantly, though, this is not the way our legal system is currently set up. We do not act to rescue people's lives whatever the circumstances. We do not force cancer patients to undergo that one last desperate round of chemo on the grounds that it might save their lives, and that this outweighs the violation of their autonomy that forcing chemotherapy on them against their wills would represent. We place autonomy first, allowing patients to decide for themselves which treatments to undergo, even when their decisions shorten their lives. I think this is as it should be. But if one accepts this, then it's hard to see how we can also say that we should never accept evidence that an incompetent patient would choose to refuse treatment on the grounds that we might be wrong. To take that view is to protect life at the expense of patients' autonomy, which we rightly do not do.

Suppose we relax our standard somewhat and say, as felix did: we will respect living wills, but not other forms of evidence. In this case, it seems to me, one would have to explain what is so special about living wills. If, as soon as a person formed a view about being treated in a given condition, a living will automatically wrote itself, that would be one thing. But obviously this doesn't happen. Lots of people have very strong views about treatment, views that they have expressed repeatedly and in detail, but have not written a living will. It is not the least clear to me why we should not accept other people's reports about what a patient has said about relevant cases, especially since we accept witness testimony in all other legal proceedings, including those on the basis of which we sentence people to an involuntary death.

It is of course true that the credibility of a witness's statement should be carefully considered. Witnesses can lie. (And living wills can be forged.) But I don't see why, after careful examination of one or (preferably) several witnesses' statements, one could not conclude that they constituted adequate evidence of a patient's wishes. The alternative is, I think, accepting a standard of adequacy so high that almost no incompetent patient could be denied treatment. And as I said earlier, this would involve a massive denial of patient autonomy.

In Terri Schiavo's case, the statements of various witnesses were heard, considered, and evaluated for credibility. On the basis of these statements, the court found that she would not have wanted to be kept on a feeding tube. That decision was appealed as far as it could go, and upheld each time. To my mind, relying on witness statements, critically examined, as evidence of a patient's wishes is perfectly appropriate, especially since most people do not, in fact, write living wills, whether or not they have strong views on the sort of treatment they would choose to receive.

On reflection, I'm going to save what I have to say about the Congress's actions for a later post. This one is too long already. But the takehome message is: first, it's about autonomy. Second, the result in this case follows from basic facts about the way we adjudicate these cases. There is nothing novel about the case itself. Third, if you think about what would be involved in changing these basic principles, it doesn't seem very attractive.

That, I take it, is part of the reason why Congress will pass a bill narrowly targeted at this case. To say that we will not allow feeding and hydration to be withdrawn regardless of a patient's wishes, or that we will not accept testimony about incompetent patients' wishes to count as evidence, would have huge and disastrous effects for a lot of patients and their loved ones. It would also be very unpopular. So Congress is trying to avoid acting in a way that would affect any other case, however similar. This is, in my view, cynical and contemptible.

***

Update: if you are new to this site, please read this before making assumptions about what sort of blog this is.

Also, having followed a few of the referrals to this post, I think I should point out that I am one of those mysterious female bloggers you hear so much about these days.

Yep, he did. (I had to take out a 14 day free trial membership in something in order to get access to the video clip at the link I provided to see it, though. Along with James Dobson saying that this is how the Nazis started. Yep: Adolf Hitler, famous advocate for patient autonomy.)

Hasn't the important question been, at least since 2003, trying to understand why the Sciavo case has become so important to religious conservatives? They can't all buy the Schindlers' pathetic diagnosis. Is there something about the parents that appeals? Something about Michael Schiavo that repels? Or is there an occult attraction, something that only conservatives can see?

This is excellent. There are only three things that I would add, not about the merits of any of this but in trying to figure out why this is happening.

1. I think that a lot of what is going on is an intuitve response to the idea of disconnecting a feeding tube. People have an intuitive emotional response to the idea of "starving someone to death" and denying them water, that leads them to overestimate the amount of suffering this causes a patient compared to other means of dying, and to overlook the difference between starving someone and not using a machine to feed them. I'm not sure why it's intuitive to us that there's a difference between disconnecting a respirator and suffocating someone to death, but the same is not true of a feeding tube. Maybe because a respirator is a larger machine that beeps more and has more lights on it; maybe because it is much more routine for a non-terminally ill patient to need to receive nutrition and liquid through a tube or an IV than it is for a non-terminally ill patient to need a respirator; maybe because a respirator must actually mechanically force a patient's non functioning organs into action whereas a feeding tube does not.

I don't think that any of these things are meaningful distinctions when we're talking about a non-consenting patient with no hope of any meaningful recovery.

2. I think part of the explanation of the fervor of the religious right, and of many people's failure to deal with the factual information about Terry Schiavo's medical condition, is that her condition is really horrifying to many people. It is especially horrifying from a religious perspective.

The parts of Terry Schiavo's brain that have been replaced by spinal fluid are the parts that science tell us are responsible for a person's memory, thought, consciousness, emotion, personality, sense of right wrong--all of the things that make us a person, and make us different from any other person.

The single word that describes this concept, in the English language, is the word "soul."

The idea that a living and apparently awake human body could exist for decades without a soul is really horrifying, and a very common response to horror is to deny its existence.

The idea that the soul is located in a part of the body that we can locate in a CAT scan and determine has been destroyed is a really fundamental challenge to religious teaching--a much, much, much more fundamental challenge in my view than the idea of a Big Bang or of evolution through natural selection, and we see how strongly those ideas have been resisted. If we know that the soul is located or contained in a specific part of the body, it is much harder to believe that it is really different from the body at all, or that it somehow escapes the body and rejoins God after death.

It also challenges conservative Christian religious teachings about abortion and birth control: if an adult human being's soul is located in the cerebral cortex, then preventing the implantation of an embryo without any nervous tissue does not kill a human being with a soul, and aborting a fetus before it has brain waves does not kill a human being with a soul.

When a situation challenges our most fundamental beliefs, we are very reluctant to acknowledge that it exists.

I should also note that like all scientific findings, the idea that the soul is located in the cerebral cortex could be misused to justify horrible abuses against people whose cerebral cortex is not functioning as it does in a healthy adult, but does still exist and is still functioning at some level. But if misusing of factual or scientific information can be used to harm people, so can ignoring factual or scientific information.

3. As far as why Congress is doing what it's doing--this is the only part of the post I actually disagree with:

"That, I take it, is part of the reason why Congress will pass a bill narrowly targeted at this case. To say that we will not allow feeding and hydration to be withdrawn regardless of a patient's wishes, or that we will not accept testimony about those wishes in the case of incompetent patients to count as evidence, would have huge and disastrous effects for a lot of patients and their loved ones. It would also be very unpopular. So Congress is trying to avoid acting in a way that would affect any other case, however similar. This is, in my view, cynical and contemptible."

This is what I thought at first too. After reading more about it, here is what I think is actually going on: the House GOP leaders want to pass a bill that is not tailored only to this case, that would have huge and disastrous effects for a lot of patients and their loved ones.

The emocrats think that given the circumstances of Ms. Schiavo's case, this bill has a good chance of passing, although they think it would never pass if Congress carefully considered this issue. Since they do not think they can stop the Republicans from doing this, and/or since the attempt to do so would be politically costly, they are trying to confine the harm as narrowly as possible.

Obviously this description is an oversimplification: it describes some congresspeople better than others, and doesn't describe any of them perfectly. But that's what I think is happening.

emo-crats. Kind of has a ring to it. Nice post hilzoy, and nice post, Katherine. You two are exemplary in taking the time to try to understand all of this. Me, I just throw up my hands and get frustrated.

In Terri Schiavo's case, the statements of various witnesses were heard, considered, and evaluated for credibility. On the basis of these statements, the court found that she would not have wanted to be kept on a feeding tube.

Is the court infallible? All the legal machinery in the world plainly does not preclude the possibility that the court's findings of fact, upon which rest the bulks of its decisions, and the others flowing from it, could be horribly wrong -- wrong enough to result in the cruel and unjust death of a helpless woman.

Michael Schiavo is manifestly not credible. He is a bigamist whose public relationship with another woman calls into profound question his integrity as a husband and a legal guardian. The diagnosis measures he has allowed do not rise to the level routine for patients complaining of acute lower back pain.

Terri’s diagnosis was arrived at without the benefit of testing that most neurologists would consider standard for diagnosing PVS. One such test is MRI (Magnetic Resonance Imaging). MRI is widely used today, even for ailments as simple as knee injuries — but Terri has never had one. Michael has repeatedly refused to consent to one. The neurologists I have spoken to have reacted with shock upon learning this fact. One such neurologist is Dr. Peter Morin. He is a researcher specializing in degenerative brain diseases, and has both an M.D. and a Ph.D. in biochemistry from Boston University.

In the course of my conversation with Dr. Morin, he made reference to the standard use of MRI and PET (Positron Emission Tomography) scans to diagnose the extent of brain injuries. He seemed to assume that these had been done for Terri. I stopped him and told him that these tests have never been done for her; that Michael had refused them.

There was a moment of dead silence.

“That’s criminal,” he said, and then asked, in a tone of utter incredulity: “How can he continue as guardian? People are deliberating over this woman's life and death and there’s been no MRI or PET?” He drew a reasonable conclusion: “These people [Michael Schiavo, George Felos, and Judge Greer] don’t want the information.”

Or consider the expert witness relied upon by the court:

Dr. Cranford was the principal medical witness brought in by Schiavo and Felos to support their position that Terri was PVS. Judge Greer was obviously impressed by Cranford’s resume: Cranford travels throughout the country testifying in cases involving PVS and brain impairment. He is widely recognized by courts as an expert in these issues, and in some circles is considered “the” expert on PVS. His clinical judgment has carried the day in many cases, so it is relevant to examine the manner in which he arrived at his judgment in Terri’s case. But before that, one needs to know a little about Cranford’s background and perspective: Dr. Ronald Cranford is one of the most outspoken advocates of the “right to die” movement and of physician-assisted suicide in the U.S. today.

In published articles, including a 1997 op-ed in the Minneapolis-St. Paul Star Tribune, he has advocated the starvation of Alzheimer’s patients. He has described PVS patients as indistinguishable from other forms of animal life. He has said that PVS patients and others with brain impairment lack personhood and should have no constitutional rights. Perusing the case literature and articles surrounding the “right to die” and PVS, one will see Dr. Cranford’s name surface again and again. In almost every case, he is the one claiming PVS, and advocating the cessation of nutrition and hydration. [. . .]

In cases where other doctors don’t see it, Dr. Cranford seems to have a knack for finding PVS. Cranford also diagnosed Robert Wendland as PVS. He did so in spite of the fact that Wendland could pick up specifically colored pegs or blocks and hand them to a therapy assistant on request. He did so in spite of the fact that Wendland could operate and maneuver an ordinary wheelchair with his left hand and foot, and an electric wheelchair with a joystick, of the kind that many disabled persons (most famously Dr. Stephen Hawking) use. Dr. Cranford dismissed these abilities as meaningless. Fortunately for Wendland, the California supreme court was not persuaded by Cranford’s assessment.

Now I am not a lawyer or a bioethicist, but if this is the integrity of an admirable legal process, then I'm a donut.

A few more points. First, I think Katherine is probably right about the motivations of the House Republicans and the Senate Democrats. So I revise my comments to refer to the motivations of the Senate Republicans, whose views seem to have prevailed. Which is worse, the cynicism of passing a bill aimed only at one person or the massive violation of autonomy involved in trying to pass a bill aimed at all similar people I cannot say.

Second, after I wrote this I went off to eat a late lunch, and watched the news as I did so. A lot of commentators were talking about this as if it were about the value of Terri Schiavo's life. It is not. If I had terminal cancer and denied chemo, and a court upheld my denial, it would not be passing judgment on the value of my life, but on the question whether my wishes should be upheld. Similarly here. It is not, after all, as though we think that people with really, really valuable lives should not be able to decline medical treatment, or that their views about what happens to their bodies can be overridden.

Third, I think it's important to underline the point that as far as the law is concerned, taking out a feeding tube does not count as killing someone, but as not subjecting them to further feeding when they do not want to be fed. (Consider: one could achieve the same result by leaving the feeding tube in but not putting any more food into it.) It looks like killing someone since it involves doing something. But legally it isn't.

Leaving the law aside, while there are important moral distinctions between doing things that cause X and merely refraining from doing things that prevent X, that difference itself is probably not the crucial one. Consider: most people think that there's a difference between killing someone and not taking steps to save them. That's why the fact that most of us do not give all our disposable income to charities that save lives does not, in most people's eyes, make us murderers. Now suppose I write out a check to some charity, but decide not to put it in the envelope and mail it. That's "not saving lives". Suppose instead, however, that I write the check, put it in the envelope, put the envelope in my mailbox where the mail person normally picks up the mail; and then, on further reflection, conclude that I can't afford it. If I go out to the mailbox and retrieve my envelope before the mail person picks it up, does the fact that I am doing something to prevent the money from getting to the charity, and not just failing to send it, mean that I am guilty of murder? (Example from a philosopher named Shelly Kagan.)

In any case, there's a really important practical reason to treat removing a feeding tube (or a respirator) not as 'killing' but as 'withholding future treatment'. Doctors are not allowed to kill, but they are allowed to withhold treatment in accordance with a patient's wishes. If removing a feeding tube or a respirator counted as 'killing', then once it was in place, it could not legally be removed. Now: there are lots of people who do not want to be kept alive if (for instance) they would have to spend the rest of their lives in a hospital, hooked up to machines. And there are a lot of operations and other medical interventions that have a good chance of curing the patient, but also a non-negligible chance of leaving them in the situations these patients do not want to be in. Often these operations involve the temporary use of feeding tubes and ventilators. If it were not legal to remove feeding tubes and ventilators once they had been put in place, then patients would have to decide before the operation whether the chance of being cured was worth the chance of ending up hooked up to machines (or whatever.) If they really didn't want to end up hooked up to machines for the rest of their lives, they might forego treatment that had a good chance of curing them in order not to be stuck in a situation that was odious to them. Because feeding tubes and ventilators can be removed, however, these patients can undergo treatment and then, if it doesn't work, have the feeding tube or ventilator removed. That is: they can take the chance that they'll be cured without having to weigh it against the chance of being stuck in a position they don't want to be in, since if the treatment doesn't work, they can then have the feeding tube or ventilator removed. This saves the lives of those patients who, faced with this choice, would forego treatment, and protects the autonomy of those who would undergo it, but who do not want to be forced to live under certain conditions.

It's a shame Ms. Schiavo isn't a retarded convicted murderer in Texas or suspected terrorist up for rendition. Then there might not be so much faith in the judge's wisdom, "expert" witnesses, and interested parties' motives. Perhaps then we'd simply focus on doing everything we can to make sure we didn't make some grave irreversible error.

The hypocrisy is so stunning that it boggles the mind. Most republicans I imagine will cop to the hypocrisy regarding Federalism and gov't intrusion because protection of innocent life is one of the few agreed upon purposes of government. How others justify theirs, and for what greater principle remains beyond me.

Thanks very much, Katherine (and, a fortiori, thanks, hilzoy!) I just had a heated discussion about the Schiavo case with my wife; because she is a very busy Wall Street attorney, her views were the same 'off the top of my head' ones that I had when Jeb Bush got interested in this case. Nothing has changed since then except the infection of vast blocs of the public by impassioned stupidity and, lately, Congressional intervention. Feeding tubes are removed, if not every day, then as a matter of course, and even regretful parents who think it's wrong don't go to court - apparently. They don't go to court again and again - who's paying all those legal bills?

In short: why is Karl Rove interested in Terry Schiavo? What does he see that we don't yet see? Why has so much political capital been committed to this case?

And who's right here, bottom line, hilzoy or Katherine? Is Congress fearful or fearless? Would a broad bill be popular or not?

On the issue of whether Schiavo would suffer from having her feeding tube removed or not: She is in a persisent vegetative state, but is not brain dead so it is possible that she might suffer distress on some level. However, there is an easy way around this: just make sure she is given adequate amounts of narcotics to keep any cortex that might still be functioning in a sleep state. Since she is at a hospice, I expect that her doctors are very skilled at easing people's suffering in their last days of life and are probably seeing that this is done.

Paul Cella: In finding that Terri Schiavo would not have wanted to be kept alive in her current condition, the court did not rely on Michael Schiavo's word alone. Nor, frankly, do I see how the fact that he is living with another woman calls his honesty into question. As to the MRI question: I refer you to the various medical citations I have given. In particular, Rivka, who writes:

"Most of the affidavits mention sophisticated new neuroimaging techniques which have been developed since the 1996 exams, and recommend that Schiavo receive a functional MRI (which tracks blood flow in the brain in response to specific stimuli) or a neuroSPECT exam (another functional imaging test). They note, correctly, that functional tests are capable of providing much more information about the nature and extent of brain damage than structural tests like a CAT scan. Yet Terri Schiavo's cerebral cortex is not damaged, it is absent. The affidavits repeatedly fail to engage with this finding. Thus, we have Dr. Ankerman: "The long duration lack of speech seen after injury trauma is not always due to destruction of brain structure. Sometimes it is due to a state of brain dysfunction that is reversible." Dr. Uszler: "Standard MRI or CAT scans are anatomy scans; they tell you if the tissue is there and its current structure, but these tests do not tell you whether the brain is working." And, most incredibly, Dr. Terman: "If the results of her response to certain neurological tests, for example the fMRI, were similar to that of normal individuals with undamaged brains, such data might indicate that there is some potential for her rehabilitation."

I suppose that these statements are technically true. Speechlessness is not always due to destruction of brain structure, but if massive destruction of brain structure is present, that's certainly the way to bet. CAT scans tell you if tissue is present and structured normally, but not if it's working; however, if tissue is absent, you'd think its lack of functionality could be assumed. And yes, if Terri had the same fMRI results as a healthy person, that would bode well for rehabilitation - but as we sometimes say here at Respectful of Otters, it's equally true that if my aunt had testicles, she'd be my uncle. Terri Schiavo doesn't have a cerebral cortex. She's not going to have a normal fMRI pattern. She simply couldn't. So it's pointless to speculate about what it would mean if she did."

"It's a shame Ms. Schiavo isn't a retarded convicted murderer in Texas or suspected terrorist up for rendition. Then there might not be so much faith in the judge's wisdom, "expert" witnesses, and interested parties' motives. Perhaps then we'd simply focus on doing everything we can to make sure we didn't make some grave irreversible error."

Irrelevant bomb-throwing that has nothing to do with the facts of this case.

Yes Mac, the hypocrisy is so stunning that it boggles the mind. The president, who now seems oh so concerned over the fate of Mrs. Schiavo, signed a law when he was Governor of Texas allowing withdrawal of treatment (including removal of a feeding tube) from terminal patients who can not pay.

Macallan: "It's a shame Ms. Schiavo isn't a retarded convicted murderer in Texas or suspected terrorist up for rendition. Then there might not be so much faith in the judge's wisdom, "expert" witnesses, and interested parties' motives. Perhaps then we'd simply focus on doing everything we can to make sure we didn't make some grave irreversible error."

Let's be clear: in the case of extraordinary rendition, part of what I find objectionable is the fact that there is no trial at all. In both that case and the case of convicted murderers, another part of what I find objectionable is that there are some things I do not think the state should do, and that list includes killing people, torturing them, and sending them off to be tortured by others. In this case, there is also something I think the state should not do: force medical treatment on people against their will. It is for this reason that I hold the views I do in this case.

An error on either side is irreversible. If Terri Schiavo dies, she cannot be brought back to life. If we forcibly feed her against her wishes, we cannot un-violate her autonomy. You may think that the first error is the worst. I would agree if we were discussing 'violations of autonomy' and 'dying' in the abstract, without the details (so that as far as we knew, what was at issue could be a minor violation of autonomy and murder.) In this case, however, respecting the patient's autonomy simply means: acceding to her view about which is worse, dying or being kept alive under these conditions. If she preferred to die, then you are irreversibly inflicting on her something she took to be worse than death.

I don't believe he is. To the best of my knowledge and belief, Michael Schiavo is still legally married to Terri Sciavo, and he is not legally married to any other woman. His personal life is really none of your business: as someone else has already pointed out, the fact that he lives with a woman he isn't married to while his wife is still technically alive doesn't make him automatically dishonest.

I'm confused. I thought Michael Schiavo lives in Florida? Florida doesn't recognise common-law marriage, ergo, Michael Schiavo can't have one. What you mean is, he's living with a woman he isn't married to.

By definition he has violated the vows he made to Terri

Well, true: by the strict definition, he's committed adultery, having sex with a woman who is not his wife. But the idea that someone who commits adultery is intrinsically not an honest person is, really, absurd: and most people would realistically acknowledge that, as Terri hasn't been conscious since 1990, and has been brain-dead since 1996, it's unreasonable to expect that Michael shall be living a celibate life.

The Schiavo case -- a perfect conflation of the dark heart of modern Republicanism. This is the use of deceit and huckster marketing to promote a cynical political agenda. It is starkly exposed here -- conservatives that stand mute deserve being lumped into this characterization of their political position.

1. Lie about the Schiavo medical condition -- since the schtick won't work if we argue from the actual facts regarding her condition -- just make up bogus ones.

2. Lie about the husband to demonize him -- since the schtick won't work if we truthfully examine his behavior -- slander him with bogus allegations. These include:
a) that he does not care (spent eight years searching for anything that could help, even though her condition was obviousy gone from the beginning) and refer to his new relationship as proof;
b) that he is in it for the money, except that money for her care was set aside from the beginning out of his reach (a common procedure in these types of personal injury cases), and there is very little left, with a great deal having been consumed by the court appointed guardian who ended up independently advocating for pulling the feeding tube. Those funds were consumed because of the vigorous right wing litigation to prevent the result -- not by her husband;
c) darkly suggest that her condition was the result of foul play probably perpetrated by the husband. This is the worst Big Lie.

3. Lie about the evidence and the court process to date that adjudicated the decision -- the husband and several friends testified that Schiavo would not want to live as a vegetable. An independent guardian ended up litigating for Schiavo's feeding tube being pulled -- the litigation was not directed by her husband. Court appointed doctors examined Schiavo extensively and repeatedly, as did doctors for the parents. The court reviewed all of this and had to make its decision based on "clear and convincing evidence" -- an obscure standard of poof in civil cases that is only slightly less difficult that "beyond a reasonable doubt." There is nothing new to examine, and no grounds for claiming that this proceeding was somehow improper.

4. Present deliberately misleading evidence; the most famous is the edited videotapes of Schiavo that pretend that she is responsive, except that the deleted portions show that her "responsive" actions are repeated randomly without any attribution to outside stimuli. The court noted this in making the decision. There are legions of additional items, including medical "experts" using the case to schill their agendas by claiming they have potential treatments available (there is no medical evidence that they can do anything other than self-aggradize). This is the type of voodoo science that Repubs decry when drug companies must defend liability suits.

5. Trash all relevant legal doctrines with legislative manueverings to profit from the issue, since this is a political opportunity;
a) issue subpoenas to require Sciavo to appear and "testify" and threaten doctors with contempt because removing the feeding tube would interfere with her being able to appear -- that is sheer nuttiness;
b) pass a law to require "de novo" review of the case in federal courts. This means that the federal courts are instructed to ignore all state law proceedings to date, and start all over again. This is a startling constitutional transgression, and a perverted legal policy.

6. Pretend that the right cares about the plight of comatose patients whose medical care is being withheld and will therefore die. Except that they could care less. If Schiavo was in Texas, a law signed by Bush while governor would permit the hospital to pull the plug over the family's objections if there was no further money to provide for care. Its happening right now in other cases.
Also, to preserve upper-income tax cuts, vote at almost the same time to cut medicaid to the states so that there will not be money available for such care from government programs -- thereby insuring that the comatose without money (or without Schiavo's political appeal) will die.

So, take advantage of an emotional situation for cynical partisan reasons, and overlay the issues with a web of lies to hype it. As for "policy," pretend that you care while advocating elsewhere policies that insure the opposite result in most cases. And pervert the law to achieve these ends.

Is the court infallible? All the legal machinery in the world plainly does not preclude the possibility that the court's findings of fact, upon which rest the bulks of its decisions, and the others flowing from it, could be horribly wrong -- wrong enough to result in the cruel and unjust death of a helpless woman.

I don't know your views on the death penalty -- I assume you oppose it?

This whole thing is so sad. Most of the people pontificating do not have anywhere near enough information to make the statements they are making. It's a tragedy for all involved, but it is not unusual. These kinds of things happen every single day. Expensive technology and sophisticated trauma care save the lives of people whose families must bankrupt themselves to provide lifelong care because we do not provide the funds for the lives saved. Our laws and ethics are nowhere near coming to grips with what technology can do.

(2) As Rivka's post points out (she and I both work in the area of neuroscience), it makes no sense to do functional studies on missing or irreversibly damaged anatomical structures.

(3) One of the most devoted wives I've ever known continues to care for the man she divorced after his severe traumatic brain injury. She and the son they had together (their daughter was killed in the same vehicular homicide that injured her father) now live with her second husband and new daughter. I am so happy that she has found new happiness, as I admire her continuing devoted care for her first husband, who must live with full-time skilled nursing care in a group home.

She is not a bigamist.

I respect those who have a consistent view in this matter and see the removal of this feeding tube as "killing" Terri. Those people oppose the death penalty, all abortions, and may even be pacifists. They weep for *all* the families, not just Terri's.

But I don't understand anyone who tries to assert that Tom Delay, and many others, are acting out of anything other than political motivation. How can you support someone with such consistently bad behavior, just because he does what you want in this one circumstance?

But the idea that someone who commits adultery is intrinsically not an honest person is, really, absurd: and most people would realistically acknowledge that, as Terri hasn't been conscious since 1990, and has been brain-dead since 1996, it's unreasonable to expect that Michael shall be living a celibate life.

On the contrary. Adultery is dishonesty. To commit it is to be dishonest.

A marriage vow perforce implies the possibility of a vow of celebacy. Accident or disease could destroy the sexual capacity of one spouse; this does not change the nature of the vow. "In sickness and in health . . ."

I don't know your views on the death penalty -- I assume you oppose it?

A good point and an equally good counter-point.

As a lawyer, my initial impression of the Schiavo case was concern that Florida law permits the decision to be made without a written document evidencing intent. As a matter of legal policy, this situation presents a trade off of competing values -- requiring greater certainty of proof (the writing) which will end up resulting in meritorious cases being denied, but also prevent with certainty unmeritorious cases from prevailing. However, the actual facts of the Schiavo litigation do not support a determination that this particular proceeding was improper.

What is constantly missing from the right's medical discussion is how someone whose cerebral cortext has been destroyed and replaced by inert spinal fluid can be revived in any way. There is no medical science that provides even a glimmer of hope in such situations. Arguments to the contrary rely on "junk science."

Do you want to know a strange and irrelevant fact? (If the answer is no, too bad.) Judge Greer (the judge in the case), besides being (I believe) a registered Republican, was Jim Morrison's college roommate, before Morrison decamped for LA.

Paul Cella: The other cases you cited (especially the one concerning the baby boy in Texas) are horrifying.

Indeed. I am hoping that others on the religious right of the Republican party will take a long hard look at Tom Delay and George W. Bush's lack of protest at Sun Hudson's death - George W. Bush signed the law that enabled Sun's feeding tube to be removed - and wonder why Terri Schiavo has been singled out for Federalized protection. Why Terri, and not Sun?

The Schiavo case -- a perfect conflation of the dark heart of modern Republicanism. This is the use of deceit and huckster marketing to promote a cynical political agenda. It is starkly exposed here -- conservatives that stand mute deserve being lumped into this characterization of their political position.

Opus's link to Mark A R Kleiman's entry on the death of Sun Hudson in Texas only intensifes my curiosity about the roots of Rovian interest in Terri Schiavo. When Karl Rove's own home base enforces a law enacted with the approval of his own biggest client, to produce a result absolutely contrary to the one sought by the party that appears to take no action without consulting him, I'm, ahem, curious.

A few points. First of all, I don't think the issue of whether Mrs. Sciavo either is conscious or has any chance, however small, of regaining any small bit of consciousness is settled with as high a degree of certainty as you claim. Were I convinced of that fact with an extremely high degree of certainty, my opinion on the issue might change, but I would also argue that killing someone who wishes to live is an immensely less favorable outcome than keeping someone on life support against their wishes after they have lost all hope of ever regaining consciousness. I will choose the latter if I see any risk of the former, and I do in this case. If she is unconscious and will never regain consciousness, little harm can be done to her that compares in any way to the harm of being mistaken as to her wishes.

Second, I find it amazing that people would be willing to accept such a low standard of evidence about what Mrs. Schiavo's wishes were when the stakes are so high. The analogy with capital punishment in this case is a good one (however poorly others may have worded it). Suppose that your only objection to capital punishment were the possibility of killing an innocent person. Would a case based only on eyewitness testimony, where some of the eyewitnesses said the accused was guilty and some of the eyewitnesses (who may have been deemed to be less trustworthy) said the accused was innocent be enough for you to not only convict, but kill? I can't fathom that.

Finally you argue that the harm from denying the wishes of a person on life support can be compared to the harm from killing someone who wishes to remain alive. Again, in my opinion, there is a fundamental difference between those two types of harm in the same way I think there is a fundamental difference between the harm of wrongly executing someone and the harm of denying whatever benefit executing a guilty person gives society (assuming such benefit exists).

I do not have a problem with doctor assisted suicide nor do I have a problem with removing the life support of someone with a living will, as long as both of those procedures have extensive safeguards to prevent abuse. I do have a problem with both capital punishment, and with removing life support without written and otherwise documented evidence of a person's wishes. Death is different, in a fundamental way, from any harm that may result from erring on the side of caution before killing.

None of this should be seen as support for what Congress is trying to do - ends do not justify means. I do think this would be a good time for a bill to be introduced in Congress prohibiting life support from being removed from a patient against their wishes and the wishes of their family due solely to a lack of money to pay for continued treatment, as those above claim is now happening.

Juries and trial judges make witness credibility determinations in this country. We don't take a poll of the Court TV audience and we don't put it to a vote in Congress. In this case, two separate judges, evaluating the credibility of all relevant witnesses after two separate trials, have come to the exact same conclusion.

There is no suggestion that there was any impropriety or flaw in the trial. The only argument I've heard is that Teresa Schiavo should have had her own lawyer to represent her interests. But in this case, the entire difficulty was determining what her interests were, and Florida law told the judge it was his job to do it. That was the whole point of the trial. So it would've made no sense to get her her own lawyer.

You can think that Roe v. Wade was wrong, Griswold v. Connecticut was wrong, Brown v. Bd of Education was wrong, and that Marbury v. Madison was wrong; that it is illegitimate for the Supreme Court or any state supreme court to strike down a law because it is unconstitutional. You can think all that, and STILL realize that it is an abuse of power for Congress to intervene whenever it doesn't like the factual findings of a judge or a jury who has examined the evidence much, much more closely than Congress has.

You know, even in a normal married life, I'd query that statement. That is, when A is living with B, and they have made an agreement to be monogamous - whatever form that agreement takes - and then A breaks that agreement by having sex with C, or with D, E, F, G, H... In such a case, A is being dishonest towards B whether or not any explicit lies are being told. But that doesn't mean that A is the kind of person who would commit insider trading, go AWOL, or tell lies about WMD to lead the country into war. Nor does it mean that B, who wouldn't dream of cheating on his partner, is the kind of person who wouldn't do any of the above.

Still, in a normal married life, whether between Terri and Michael, or George and Tony, or Martina and Rita, if you make an agreement on monogamy and break it, amd don't tell your partner what you've done, you're being dishonest. No argument. It says nothing about how honest you'll be in other areas.

None of this applies to Michael Schiavo, or to anyone in Michael Schiavo's position. Terri's been in a coma since 1990: Michael's known she's braindead with no hope of recovery since 1996. He seems to have finally conceded she will never recover in 1998, and, honest to whatever, Paul, I really fail to understand how you can think that his living with another woman, in (for all either you or I know) a caring and monogamous relationship, makes him intrinsically dishonest. He seems to be a much-slandered man, from what I can see from right-wing blogs, and I find that fairly disgusting.

I think we have reached, quite accidentally, one of those deep points of disagreement that reveal the real difference among us.

To violate a vow is to be dishonest. It is dishonesty by definition. Moreover, since the vow in question is one of the very few our society still attaches real significance to (what is a wedding ceremony, really, but a public taking of vows?), I hold that to violate it is among the more vivid public displays of dishonesty possible for a man.

But in the case in question, I am not arguing that Michael Schiavo's adultery makes him less credible in all cases (although I would certainly support a law making that legally true); I am merely arguing that since the issue in question is his fitness as guardian of his disabled wife, his adultery against her is relevant.

"In short: why is Karl Rove interested in Terry Schiavo? What does he see that we don't yet see?"

My guess FWIW (not much): look at the fact that removing the feeding tube flouts Catholic doctrine; the Vatican has expressed interest in this case. Although Rove has the Protestant Evangelicals, he doesn't have the strict Catholics (Bush's disregard for Just War doctrine is a problem, for one thing). This case might help him there.

felixrayman, you make an excellent point. As it happens, if it were up to me, I would err on the side of keeping Terri alive -- simply because there is no written, signed document or other incontrovertible proof of her intention.

But it's not up to me. And, as I stated before, our ethical and legal standards are not near up to dealing with what medicine can do these days. So every family that must go through this (and there are multitudes more than Terri's) has only an imperfect legal system to mediate disputes. That process has taken place for Terri. It may be faulty, but it's what we've got. Those who don't like it have a great deal of work to do to try and catch up. It will take legislation, it will take education, it will take time. What's happening now is not going to fix anything.

And what's really obscene about this weekend's activities is the hypocrisy. What's obscene is that after a few well-meaning people supported Terri's parents, a whole horde of others have used them to promote an agenda, providing them with false hope and this interminable, agonizing struggle. In my years working in physical rehabilitation, I saw many such families. I am relieved now for all of them that their private struggles were private; sometimes vicious, always painful -- but private.

One more time, with feeling: those who don't want a spouse to have the power to decide life support issues in the absence of a living will, those who don't believe in the removal of life support at all, those who want federal rather than state jurisdiction over these cases: get busy for the long term. Let Terri be at peace, enlist her parents in the upcoming struggle, and stop supporting those who engage in circumstantial tokenism in matters of life and death.

And by the way, just so no one thinks I'm being reasonable about the political aspect of this, I have posted a photoshopped picture at my blog that expresses my feelings about Mr. DeLay and Dr. Frist's involvement. It would be in poor taste, if the ghoulish behavior of both men in this matter hadn't made that term meaningless.

"I should also note that like all scientific findings, the idea that the soul is located in the cerebral cortex could be misused to justify horrible abuses"

Whoa. I misspoke there. "The soul is located in the cerebral cortex" is not a scientific finding. It is a conclusion that people might draw from a scientific finding, but it is sure as heck not itself a scientific finding.

Paul Cella: I am merely arguing that since the issue in question is his fitness as guardian of his disabled wife, his adultery against her is relevant.

Except that, as I think Hilzoy points out in this very post, there is no question of Michael Schiavo's fitness as guardian of Terri Schiavo: none at all. The courts made the decision about removing Terri's feeding tube: Michael did not. So his relationship with another woman is not relevant. (I refer you to Opus's March 20, 2005 05:16 PM, for another spouse who is - by your standards - "committing bigamy", and yet appears to be a good carer.)

one of those deep points of disagreement that reveal the real difference among us.

Same point it always is, as I recall. You think you have the right to judge other people by your own interpretation of your religion: I think that people should be judged by how they behave. It seems to me that Michael Schiavo's behavior has been both decent and caring - I see no reason to assume that his relationship with another woman makes him unfit to speak of what Terri would have wanted back when she had the ability to think and decide for herself.

And the slandering I have seen of his character (of which your characterisation of him as an "adulterer" was one of the mildest) has been quite appalling.

Just so I'm keeping score correctly, on one side we've got people with some actual medical, scientific and neurological education and professional experience who conclude from the available evidence that there is little more than a shell full of liquid where this woman's brain used to be, rendering her effectively dead anyway, and who have given thought to the ethical and legal questions behind this situation; and on the other we've got a guy interested in slandering the husband, passing laws to make adulterers legally dishonest or some such crap, and with nothing useful to say about how a headful of liquid is supposed to regain consciousness. Is that just about correct?

Dr. William Bell, a professor of neurology at Wake Forest University Medical School, agrees: “A CT scan doesn’t give much detail. In order to see it on a CT, you have to have massive damage.” Is it possible that Terri has that sort of “massive” brain damage? According to Dr. Bell, that isn’t likely. Sometimes, he said, even patients who are PVS have a “normal or near normal” MRI.

But that's the point: Terri has that sort of massive brain damage and it *is* visible on the CT scan.

Mac, if there's a further link that shows that Dr. Bell looked at the CT scan and still thought there was room for doubt, please pass it on.

As I said earlier, based on the current sorry legal standards in this area, I'm actually on the side of keeping Terri alive, as cruel as I think that would be. But it's not up to me or any of us. Not today.

It seems to me that on at least some plausible conceptions of personhood, the person Terri Schiavo ceased to exist some time ago, and now there is no such person. I wonder how that interacts with the autonomy issue. Is it even possible to violate the autonomy of a non-existent person? Respecting someone's wishes as to what to do with her remains after she has ceased to exist is a good thing to do, but is it good because not to respect them would be to violate her autonomy?
I am genuinely confused about this.

So I've seen claims from all sorts of parties now that Terry Schiavo can eat normally, react normally, even speak normally -- and yet we've been seeing the same heavily-edited, ambiguous and cherry picked video footage packaged by her parents and their lawyers for two years now, with no evidence of these other claims. None. Amazing. You'd almost think they're making it up.

One minor pedantic quibble: Schiavo is not brain dead. If she were brain dead, the only questions that would need to be addressed would be whether her organs would be donated to those who needed them or not and whether cremation or burial was prefered. A person is declared brain dead only when there is no brain activity whatsoever, including no brainstem activity. Schiavo has some brainstem activity, as is evident from her continued ability to breathe without a respirator. However, her cerebral cortex--the "higher brain" is mostly gone. Note that her CT shows not only enlarged ventricles but also severe cortical thinning and flattening of the cortical folds. Adult neurons don't regenerate. She's never going to regain conciousness or have any meaningful life. It's past time to let her finish dying.

me: "She is in a persistent vegetative state, with little or no cerberal cortex, and no hope of recovery."

mac: "That may be a fact not actually in evidence"

Actually, it is in evidence. The court said, as hilzoy kindly pointed out above in her post, the following:

"Although the physicians are not in complete agreement concerning the extent of Mrs. Schiavo's brain damage, they all agree that the brain scans show extensive permanent damage to her brain. The only debate between the doctors is whether she has a small amount of isolated living tissue in her cerebral cortex or whether she has no living tissue in her cerebral cortex."

As I said earlier, based on the current sorry legal standards in this area, I'm actually on the side of keeping Terri alive, as cruel as I think that would be. But it's not up to me or any of us. Not today.

My view Opus is that there is enough conflict of evidence, and interested parties who could both have sincere yet contrary views, that this situation is worth a review of prior court action. Yes, I'm concerned about the precedents and unintended consequences.

Though I am generally pro Death Penalty, I don't want innocent people executed, so I see the necessity and utility of appeals and/or executive intervention in the process. So similarly, though my natural instinct would be to defer to a spouse's sincere guardianship, that doesn't mean in every case it should be assumed correct. Just like in a Death Penalty case, a jury's finding of fact shouldn't always be assumed correct, I don't think we should assume the judge's finding of fact correct here either.

To me, it isn't one party good the other bad, so much as it is there are enough questions to merit review. I'd rather error on the side of protecting the individual who most needs protecting.

I'm not a neurologist and I've never examined Schiavo or even her record. However, based on her CT scan, I would be very suprised if she has any living tissue in her cerebral cortex. If you look carefully at the CT, you'll notice that although her cortex is severely thinned, it is not pushed to the edge of her skull and the cortical folds are not pressed together as though squeezed by an outside force, ie excess pressure from too much spinal fluid (CSF). This indicates that the cortex is disappearing and being replaced by CSF rather than being pressured by excessive CSF and dying. Most likely the neurons are necrosing, being ingested and carried away by macrophages (or, this being the brain, glial cells) and CSF is filling the void. This simply wouldn't happen in a healthy brain.

Mac, that's why what we say as individuals -- and what action we choose to take in the long-term in terms of trying to change legislation, trying to educate the public -- is one thing; and Senators and Congressmen intervening at the last minute in this one specific, high-profile case is quite another.

I see the party has moved over here. I wonder if all of those who have supported the Repubs because of the vague whiff of libertarian principles will run screaming from the room. This CBS transcript really amazed me with the straightforward criticism of Congress, but he may be a talking head rather than a true employee of CBS. However, he minces no words

QUESTION: What does that concept do the regular give and take between the court systems, the idea of comity and cooperation between judges?

ANSWER: It destroys it. But that's the whole point of this Congressional action. Not liking a particular result in a case that has been litigated fully and completely by a court with competent jurisdiction, Congress now has said that the game must be re-done with new rules that heavily favor one side over the other. The implications of this move are astonishing. Just think about it. Anytime Congress doesn't like the result in a particular case, it could swoop in and call a "do-over," which is essentially what this legislation represents. And this from a Congress that has for a decade or so tried to keep all sorts of citizens-- including disabled employees-- out of federal court. If this law is declared valid, no decision in any state court in the country will be immune from Congressional second-guessing. It would throw out of whack the entire concept of separation of powers. The constitutional law expert Tribe calls it "trial by legislation" and he is right.

QUESTION: You are getting agitated again. Doesn't the legislation specifically say that it does not "constitute a precedent with respect to future legislation, including the provision of private relief bills"?

ANSWER: Yes, it says that. But so what. It said that the last time Congress did this and it didn't stop Congress from doing this now. Look, there is no other way to put it: this is the most blatant and egregious power-grab by one branch over another in my lifetime. Congress is intruding so far into the power of the judiciary, on behalf of a single family, that it is breathtaking. It truly will be fascinating to see how federal court judges react to this-- whether they simply bow down to this end-run or whether they back up their state-court colleagues. And it will be interesting in particular to see what the Supreme Court does with this case. Even the conservatives on the High Court-- and the Chief Justice in particular-- must be concerned about the precedent this sort of legislation would set.

Also, far far earlier, Mac suggests that it is hypocrisy to trust the judges in this case, but not in terrorist cases and has just suggested that he wants the appeal process to 'protect individuals who most need protecting'. The fact is that I can (and a number of people have) google up all of the court documents and all the evidence on the Schiavo case (I can even look inside her head, with the CAT scans), but in the case of terrorist suspects, the government not only argues that the evidence is classified, but even that the theories of legal jurisprudence cannot be revealed, when those cases come to court (as Katherine has pointed out, extraordinary rendition never even comes before a court). If the government would conduct its prosecution of terrorists in a similar way, I would given more consideration to the results.

If you believe in the values appeals in the Schiavo case, then you should be agitating against the whole process of extraordinary rendition with equal ferocity. However, my memory of your contributions has been to downgrade the fuss over this. I'm headed out the door now, but I'm hoping you could explain this disjunct or point me to your attacks on the notion of extraordinary rendition.

"To me, it isn't one party good the other bad, so much as it is there are enough questions to merit review."

Just what questions do you think there are, Mac that would warrant yet another review of this case? Questions which have not been raised and dealt with by the proper authorities, in the proper legal manner for more than seven years now. Questions, which, btw, have been consistently answered in favor of Michael Schiavo, and against the claims of the Schindlers. For year after year.
No snark intended, I am just curious as to what issues in the Terri Schiavo case (saving, of course, the entire concept of withdrawing her nutrition) you think might yet be unresolved.

Except it is. Also Mac, just fyi, National Review is not a medical journal, and its writers are not doctors or scientists. An MRI is a way to determine the extent of damage to the brain. Terri Schiavo's brain is not damaged so much as its cortex is physically absent. Which is no doubt one reason why several courts have all ended up at the same place. As for this:

For the record, I consider Terry Schiavo none of my business, or at least not needing my personal intervention, since she appears to have adequate advocates on either side. I see no plausible way for me to have an opinion on her particulars more informed than the many people involved in her case. In my ideal world, I would not have ever heard of Terry Schiavo.

But she has somehow moved from a personal matter to a state controversy to a national argument. And to some degree a partisan issue. I want to thank Mr Cella and macallan for showing up in defense of their political leadership. I think it especially important for Republicans to expess their views not only of the specific ethical questions involving Ms Schiavo, but also the broader federalist and constitutional issues at play this weekend.

I am probably missing everything important by refusing to watch television. :)

Michael Schiavo did not take it upon himself to decide what his wife's wishes were. He petitioned a court to decide the matter. He had the right to do this, as his wife's legal guardian. In the absence of durable powers of attorney stating otherwise, spouses are one another's legal guardians in event of incapacity; that's the law.

He didn't petition the court the minute Terri Schiavo collapsed; or the year after she collapsed, or five years after she collapsed. He spent eight years trying to find treatment for her, getting himself trained as a caregiver, and only petitioned the court when it became clear Terri's condition would never improve. It will not improve. Her cerebral cortex has dissolved. No medical treatment exists to make it grow back.

The court decided, based on testimony from Michael and from others, that Terri Schiavo would not want to continue existing once any hope of recovery is gone. The court's decision was repeatedly appealed; each appeal ended with the original court decision upheld. Jeb Bush intervened, and the matter went to courts again; again the original court decision was upheld.

Michael Schiavo's current marital or quasi-marital status is not at issue. He didn't make the decision; the courts did.

The circus around Terri Schiavo is politically motivated. It can't be anything else: George Bush signed a bill into law in Texas allowing hospitals to let patients die based on ability to pay for care as well as on their medical condition. The bill was supported by the National and Texas Right to Life organizations. Sun Hudson, an infant, was just disconnected from life support. Spiro Nikolouzos, an old man, will be disconnected in two weeks, if his family can't find another facility to take him.

None of the Republicans, religious activists, or RW agitators clustered around Terri Schiavo have said one word about Sun Hudson or Spiro Nikolouzos; therefore, their claims to "support life at any cost" are empty. They have taken advantage of a pair of grieving parents. They have told the parents indefensible, outrageous lies about Terri's hopes for recovery. They have told the country and their followers indefensible and outrageous lies, most notably claiming that Terri has cried "I want to live!" when Terri is utterly, without question, incapable of doing any such thing. They have intruded past police barriers, trying to get to Terri's room - where, they said, they hoped to give her bread and water; which, had they succeeded, would likely have killed her, since she has no swallow reflex.

The medical facts are not arguable, unless you go in for quackery. The legal history is established public record; and the decisions were made in accordance with law and ethics.

There is no case here. What there is, is a politically-driven circus of surpassing cruelty and cynicism; one with enormous dire consequences to the judicial and medical institutions, and to individual rights of autonomy.

I'd like to know what the congressional Dems are up to... Occording to Katherine's post in the other thread, they are letting the Repubs do their little dance in return for a deal of some kind. The deal, correct me if I'm wrong, is for the congressional Repub leadership to NOT "go nuclear" and change the rules on judicial nominee fillibusters in return for Dem compliance on the Terri Schiavo Law Pt. II.

Coupla questions :

1) How can the fillibuster rules be changed without minority party help? I mean, what could the Dems be afraid of, either they can stop it or they can't. If they can't, what is to have stopped any other majority party from changing the rules a century ago? What could this "deal" entail?

2) How does everyone feel about the Dems inability to put up a fight on such an egregious powergrab? I imagine the Repubs here are inwardly gloating but it's really pretty damn sad to me. They have been cowed such a degree that they are afraid to bring the case to the people and try to whip up their own "outrage". All it would require is some backbone and maybe grandstanding.

3) Finally, how can this help the Repubs in 06? They are splitting their base, not growing it. Enraging the religious right is has been perfected in recent years but this stunt seems too hamhanded to work.

This whole sideshow is likely to be pointless in the end. As I understand it, the bill passed mandates a trial in a federal court. I still don't see any concrete evidence that florida law was misapplied. The constitutional claim has already been denied.

At most this just drains vital health resources while a federal, as opposed to state, court comes to the same conclusion.

From everything that medical professionals can see, her spirit is gone. Reviewing this ad nausium can serve no purpose.

Mac: " this situation is worth a review of prior court action." -- It has already been reviewed extensively. The claim that she would have wanted not to be kept alive in this situation has been reviewed and appealed all the way to the Florida Supreme Court. The claim that there is no reasonable hope of recovery has also been appealed all the way to the Florida Supreme Court. The claim that "Terri's Law" is unconstitutional has been appealed all the way to the US Supreme Court. I can't see why all these appeals aren't sufficient.

"Occording to Katherine's post in the other thread, they are letting the Repubs do their little dance in return for a deal of some kind. The deal, correct me if I'm wrong, is for the congressional Repub leadership to NOT "go nuclear" and change the rules on judicial nominee fillibusters in return for Dem compliance on the Terri Schiavo Law Pt. II."

No, no. That's not at all what I was suggesting and I hope no one else got that impression. I am suggesting that this is the deal: they vote to allow the Republicans to grant limited jurisdiction for a federal court to hear a constitutional challenge filed by Teresa Schiavo's parents, although they consider this an abuse of power, in return for the GOP giving up attempts to pass laws that Democrats see as worse abuses of power, such as:
--the House bill supported by Tom DeLay, which that allows anyone who claims an interest in the patient's fate to challenge the family or patient's decision to end life support in federal court.
--earlier versions of the Senate bill that would've allowed the Schiavos to challenge the Florida court decisions on more grounds, and would've allowed the litigation to drag out longer, etc.

I mentioned the filibuster only to say, the Democrats cannot necessarily count on stopping even the house bill. I bet at least five Democratic Senators would break ranks, and even if they didn't, Frist may decide that this is the perfect time to end the filibusters. But I don't think any kind of a deal at all has been cut about the "nuclear option".

If I understand the Senate bill correctly: the Schindlers are going to lose their federal case. The only question is on what legal theory and how long it takes to reach the final result. And presumably the court will decide that the feeding tube can't be removed until the case is settled. At which point, I guess DeLay and Frist will start all over again, and if they get another law through THAT will have to be litigated, and on and on.

(a) Does this bill violate the Constitutional ban on bills of attainder?

(b) (Here I reach the limits of my tiny legal knowledge, and am groping): am I right in thinking that when the federal court takes this up on appeal, it will not have the authority to retry the facts, just to examine whether the laws were properly applied?

(c) Is there any grounds for this case being considered in Federal Court other than (1) this bill, and (2) the 14th Amendment?

(d) Since the relevant part of the 14th Amendment is presumably the claim that no one shall be deprived of life etc. without due process of law, and since there doesn't seem to be any question that Terri Schiavo has received due process, how could the court possibly conclude that her constitutional rights have been violated unless it gets to retry the facts?

Random notes: Who is paying Terry Schiavo's medical bills? Who will pay her medical bills into the future should she live? Me? Great, raise my taxes. Don't cut the programs. Better, raise your (yeah, you) level of tax pain equal to your concern for Terry Schiavo's life. Better yet, make Terry Schiavo's parents pay for the care, including the MRI, which insurance companies routinely turn down requests for, and then pursue them to the ends of the Earth under the new bankruptcy rules after they hock their credit cards and mortgages to the hilt. Let's make it a real effing tragic circus. After she dies a natural death, drag them into debtor's prison. When they are at death's door, deny them care because they are broke. No one will notice; that's where we are all going under the purposeful, exquisitely planned bankruptcy of the Federal government.

Unless you have private resources or can get your friends to put on a big bake sale.

Macallan is precisely correct. It is a shame Terry Schiavo is not a retarded murderer in Texas or a terrorist up for rendition. It is also true that those two examples might wish they were Terry Schiavo in the eyes of the cynics in the Republican Party.

Someone, somewhere (was it here?,I'm too tired to look)
has lamented the idea that we stop feeding Alzheimers patients. Having watched my father-in-law die slowly from that disease and having participated in deciding to go against his wishes (he liked guns and would have used one on us had he known we prolonged his life), he ended up aspirating the food he was given and choking to death.

I participated in choking him to death. That's murder, apparently. Make a circus out of it, someone. Please.

a. no. This is based mainly on what Con Law professors have said in the papers; I've never studied the bill of attainder class.
b. yes. Actually, it's more limiting than that: they can only review whether it violates the U.S. Constitution, not whether the judges incorrectly applied Florida law.
c. not that I'm aware of.
d. there are two potential due process claims that they seem to have in mind:
--a procedural claim that Terry Schiavo was denied effective assistance of counsel. This will not succeed. There is no possible function that a lawyer would serve for her that the judge in the trial courts was to serve: to determine her interests. The lawyer would have more possibility of conflict, and fewer resources than the judge, for determining her interests. Also, courts are extremely reluctant to require the government to appoint custody in civil cases. They don't require it in deportation or asylum cases though it would be decisive in the success of the asylum claim in most cases, and the applicant's life is at stake. They don't require it in a proceeding to terminate parental rights, even though it would often be decisive in those cases. I simply cannot imagine this claim succeeding.
--a substantive due process claim that it is unconstitutional to remove life support from a patient when there is any doubt as to what she would have wanted. I simply cannot imagine this succeeding with a federal judge. Conservative judges entirely reject substantive due process (it's the basis for Roe v. Wade for God's sake). Liberal and moderate judges is going to say, this is not the government taking her life away, this is the government making a factual determination about whether she would have wished to be fed through a tube under these circumstances, and they scrupulously followed the laws in making this determination. IIRC the right to refuse medical care has been held to be constitutionally protected.

e. It is also possible, maybe even likely, that the court will decide that her parents do not have Constitutional standing (under Article III's case or controversy requirement) to sue about a violation of their daughter's 14th amendment rights when the state of Florida has already determined that they are not her proper legal guardian. Scalia and Thomas are real sticklers about standing.

They are going to lose in federal court. The question is how long it will take, and how Congress will react the next time this happens.

I don't watch TV news, so I don't know how this is playing to the country at large, but from what I can gather on-line, the GOP is losing support among the general public on this.

If that's so, there's no percentage for pursuing the case after this latest round. Quite the opposite. They've kept their base whipped up and diverted attention from so many other issues which aren't going well for them. And now they can use Terri as a fundraiser and talking point in their ongoing campaign against an independent judiciary. I can see the ad text already: "Activist, unelected judges let Terri Schiavo die. We couldn't stop them, this time. But, with your help, we can pass a bill that allows Congress to tell the courts, 'No, you cannot hear this case; you cannot make this decision.'"

Hell, yes. That might've been in the back of their beady little minds all along.

And that's some hella interesting wording in DeLay's bill. "[A]nyone who claims an interest in the patient's fate"? Would that include random religious nuts and self-styled psychics who claim the patient appeared to them in a vision and asked for their help? Shall we now have medical practice determined by Ouija board?

The United States District Court for the Middle District of Florida shall have jurisdiction to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Schiavo for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.

SEC. 2. PROCEDURE.

Any parent of Theresa Marie Schiavo shall have standing to bring a suit under this Act. The suit may be brought against any other person who was a party to State court proceedings relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain the life of Theresa Marie Schiavo, or who may act pursuant to a State court order authorizing or directing the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life. In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings. The District Court shall entertain and determine the suit without any delay or abstention in favor of State court proceedings, and regardless of whether remedies available in the State courts have been exhausted."

The way that bill is worded, it sounds to me as if the Schindlers can keep bringing suit until they get a favorable ruling, or until the heat death of the universe, whichever comes first. It doesn't say anything about any decision being final.

I was with my sweetie at Macy's today trying hopelessly to find a set of plates we can agree on (I want something with a smidgen of craftsmanship, she wants something we won't feel bad about the kids dropping when we have kids) when I was pulled back into this second-hand nightmare: I overheard one employee saying to another, "I just hope the bill passes and she has a chance to live - I'm praying for that". I really had to bite my tongue, in part because of the good chance that person isn't informed about this case or the others linked earlier - or has a set of views like felix that I disagree with but respect.

Anyone know how many people like Terri died today unfeted in the tabloids?

For anyone who doesn't know what I am talking about, there are many conservatives who believe the Constitution gives Congress the power to completely control the jurisdiction of Federal Courts. In other words, Congress could declare Roe v Wade unconstitutional, and declare that Federal Courts couldn't review that decision.

Moreover, since the vow in question is one of the very few our society still attaches real significance to (what is a wedding ceremony, really, but a public taking of vows?), I hold that to violate it is among the more vivid public displays of dishonesty possible for a man.

Do you hold it to be a violation of the vow to have sex with another woman after the wife has died?

When we think about expanding the number of people with standing to sue in a case like this, one should also consider this article which notes how many more people there are who might have an interest, outside of the random people with an ax to grind.

Fantastic post! I've been wanting to write one like it all weekend, so I'm glad you did it for me. It also means more coming from an actual professor of bioethics, and not just a physician and semi-pro bioethicist like myself.

a. Almost certainly not a violation of bill of attainder since the law does not direct any result or punishment. It creates a new procedure to re-open litigation but does not mandate a result, which is the sin addressed by the bill of attainder clause.

b. The answer is basically no, with a twist explained below. The federal suit would not be limited, and I disagree with Katherine's answer. The Act is specifically intended to give the Federal Court the power to decide the legal and factual questions on its own without regard or deference to any state proceeding. They key language is this:

In such a suit, the District Court shall determine de novo [emphasis added] any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings. The District Court shall entertain and determine the suit without any delay or abstention in favor of State court proceedings, and regardless of whether remedies available in the State courts have been exhausted.

When one court reviews proceedings already undertaken in another court, there is a body of law governing the scope of review of the other court's decision. When the reviewing court is free to reconsider all aspects of the decision and need not defer in any way to factual or legal decisions by the prior court, that is described as a de nove review. By contrast, other more deferential standards are referred to as substantial evidence or abuse of discretion. Using the term de novo makes it clear that the federal court is supposed to start at square one in the decision-making.

Also, the remaining clauses cut off all other arguments for deference to the state court.
____

The twist is that the federal legal question is narrow, and probably had to be to avoid obvious unconstitutionality. The federal court is supposed to determine the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States... Note that it cannot determine the basic state law question of what should be done.

There does not appear to be any federal law regarding this medical issue (searches of the applicable US Code did not turn up any; any experts on this out there?). The only federal question would be procedural due process, which is a non-issue here.

I imagine that the new lawsuit will argue a substantive due process right under the federal constitution not to be allowed to die, and seek to re-open all of the fact questions of her condition and whether she had indicated her wishes not to be sustained in a vegetative state. The whole point of this law is simply to allow more litigation and insist that she be kept alive for that additional litigation. But there is no real federal question to be decided, unless someone also invents a new one for this case.

An anology is that the federal court cannot hear state murder charges (except for those involving "state action" and then only as a 'violation of civil rights' charge -- not murder). Certain types of legal issue is purely within the power of states -- not the federal government.

If this nutty law is proper, I assume the federal government could intervene in any typical state law case (divorce, mass tort litigation, etc.) when an aggrieved litigant with clout did not like the state court result.

Hasn't the important question been, at least since 2003, trying to understand why the Sciavo case has become so important to religious conservatives?

Fred Clark, over at Slacktivist, had an excellent post last year on how the driving force behind much of pre-millenial dispensationalism (the theoretical/eschatological underpinning of much of modern religious conservativism) is a near-pathological fear of death.* I can't help but wonder if that's part of what's going on here.

* I think there was another post on the matter, but I can't seem to find it right now.

For the lawyers here: one of the key cases here is Cruzan, in which the Supreme Court found that it was legitimate for Missouri to require "clear and convincing evidence" of the wishes of a patient in a persistent vegetative state, as opposed to some less stringent standard, in deciding whether feeding and hydration could be withdrawn.

Bob-
It might be wrong, but the argument that Congress could strip all Federal Court jurisdiction isn't crazy. Congress was under no obligation to ever create any Federal Courts, and could destroy them. If it could destroy them, it seems that it can limit them in a great many other ways.

I've read a number of the decisions and testimony in the Schiavo case courtesy of the University of Miami site devoted to it. The Guardian ad Litem's report (where a GAL was appointed by the court to represent Terri Schiavo and determine if her wishes were being followed) came out in 2003. Here is what the GAL(who was a physician and an atty) had to say about Michael Shiavo:

"Proceedings determined that there was no basis for the removal of Michael as Guardian. Further it was determined that he had been very aggressive and attentive in his care for Theresa. His demanding concern for her well-being and meticulous care by the nursing homeearned him the characterization by the administrator as a "nursing home administrator's nightmare." It is notable that through more than 13 years after Theresa's collapse, she has never had a bedsore." GAL Report at p.13 Christoper Reeves died of infected bed sores.

The Guardian ad litem also noted that the Shindlers had even encouraged Michael to date other women, and he intrduced the women to the Schindlers. Nice. Bet they've changed their tune since then, haven't they?

Where is the evidence that sexual fidelity was ever agreed to in their marriage vows? Were you at the ceremony? Were the vows they took admitted into evidence that has yet to be made public? Because I have read ALL of the public records in my extensive research on this case over the last three years, and I have yet to come across any videotape, recording or toher evidence, either admitted into any legal proceeding or otherwise that they had this agreement.

Try another tack, preferably one that does not include an argument which contains facts not in evidence.

Hasn't the important question been, at least since 2003, trying to understand why the Sciavo case has become so important to religious conservatives?

It seems to me that this is merely a backdoor way of going after the abortion question. Terri Schiavo has no brain, yet still is considered alive. Those she is an organized group of cells that perform homeostasis, on what other lane could she be considered "life". Perhaps a cellular one. This is just an opportunity to push the question of what constitutes life to another degree of adjudication, in a very real sense, moving to give the courts, not the owner of the body which contains life in any sense, res judicata.

The Guardian ad litem also noted that the Shindlers had even encouraged Michael to date other women, and he intrduced the women to the Schindlers. Nice. Bet they've changed their tune since then, haven't they?

Now that Republicans are so committed to health care, even for those in persistent vegetative state, I expect them to propose a wide-ranging, comprehensive health care program that covers everyone, for nearly everything. Surely they didn't pass this bill, which is arguably unconstitutional and is clearly destructive to federalism, just to try to make political points.